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Archives: 03/2011

The Weinberger-Powell Doctrine offers Congress and the President five key hurdles before military force should be employed. Chris Preble, in this new video, runs through the reasons why President Obama’s Libya incursion fails the Weinberger-Powell test.

Speaking of free speech, last night I had an Obamacare panel at Widener University, which is currently having its own little speech-related brouhaha. (Getting there was a bit of a hassle because I was held up at the Wilmington Amtrak station by Vice President Biden’s entourage — but I didn’t end up in a closet, so I guess it could have been worse.)

There are strange things afoot at the tiny Delaware law school, specifically to tenured professor Lawrence Connell, who also happens to be the adviser to the school’s Federalist Society chapter. From the Foundation for Individual Rights in Education:

Widener University School of Law is attempting to fire longtime criminal law professor Lawrence Connell by charging him with dubious violations of the school’s harassment code, such as using the term “black folks” in class and using the names of law school Dean Linda L. Ammons and other law school colleagues as characters in class hypotheticals. Although a faculty panel has already recommended that Widener drop its “dismissal for cause” proceedings against Connell, administrators have reportedly induced students to issue further complaints under a new process that forces Connell to keep the details of the proceedings secret. Connell, who is represented by attorney Thomas S. Neuberger, also requested help from the Foundation for Individual Rights in Education (FIRE).

“Not only do the charges against Professor Connell appear to be either unsubstantiated or totally meritless, but even after the faculty refused to assent to his firing Widener has found a new, ‘confidential’ procedure to use against him,” FIRE President Greg Lukianoff said. “Professor Connell has already addressed the charges, but now he cannot publicly discuss the details of his prosecution out of fear of punishment for ‘retaliatory action’ if he reveals them.”

Although Widener is a private university, a faculty member receiving such treatment on dubious charges should raise some eyebrows in legal academia. If there is something to the charges, let them be aired in public. While this is not a constitutional issue, I’m sure the law school administration is well aware of the importance of both due process and intellectual freedom. To that end, either the professor should be afforded the dignity of defending himself to his accusers or this nonsense should be put to bed.

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background: In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito: Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US: Sort of.

Alito: Have you readFEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

In his speech last night defending U.S. participation in Libya’s civil war, President Obama repeated the justifications for bombing Libya that I attacked in a post written for the National Interest last Friday, “Three Phony Reasons to Bomb Libya.”

1. The President argued that Qaddafi recently “lost the confidence of his people and the legitimacy to lead.” I’ll again quote George Will on that:

Such meretricious boilerplate seems designed to anesthetize thought. When did Gaddafi lose his people’s confidence? When did he have legitimacy? American doctrine — check the Declaration of Independence — is that governments derive their just powers from the consent of the governed. So there are always many illegitimate governments. When is it America’s duty to scrub away these blemishes on the planet? Is there a limiting principle of humanitarian interventionism? If so, would Obama take a stab at stating it?

2. Obama said in his speech that humanitarian concerns caused U.S. military action. Here’s what I wrote about that:

Certainly humanitarian concerns influenced some Libya hawks, including the President and his advisors. But that rationale is more selling point than motivation. Libya’s is a not particularly brutal civil war compared to others we ignore.

Nor is it clear that bombing Libya serves humanitarian ends. True, absent outside intervention, the Libyan government would likely have reasserted its authority in the east, killing rebellious civilians. But the civil war that intervention prolonged will probably kill more. In his March 18 speech justifying war on humanitarian grounds, Obama quoted Qaddafi’s promise to show “no mercy and no pity,” but failed to note that the dictator was threatening rebel fighters, not civilians, and explicitly excluded rebels that surrendered. The point is not that we should bank on such promises but that the path to minimizing violence is uncertain.

3. The President claimed that if Qaddafi defeated the insurgency:

The democratic impulses that are dawning across the region would be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power. The writ of the UN Security Council would have been shown to be little more than empty words, crippling its future credibility to uphold global peace and security.

I summarized my argument for why this is a terrible reason for war this way:

Credibility rationales for wars suffer two crippling deficiencies. First, there is little evidence credibility travels much. Second, even if it did, fighting limited wars of questionable value seems likely to damage one’s perceived willingness to fight elsewhere. Western intervention in Libya may encourage Middle-Eastern dictators to crush dissenters rather than accommodate them.

Three other arguments that the President made last night need response.

4. He again claimed that while U.S. policy aims to replace Qaddafi with democracy, our military efforts serve only to defend civilians. That’s a useful fiction meant to keep the coalition unified and mitigate worries about mission creep. We are now giving the rebels close-air support (though our military spokespeople aren’t allowed to say so) and attacking the Libyan military even where it does not threaten civilians. As I’vesaid, although I oppose fighting in this war, insofar as we are in, we should have a military policy consistent with our goal of helping the rebels win. So this is good mission creep. But even with stepped-up air support, the rebels likely still lack the organization to overtake western cities, meaning that stalemate and de facto partition remain likely.

5. As if to undermine that last claim, the President used the word freedom a half dozen times in his speech, concluding with soaring rhetoric about how promoting freedom is good for Americans. The trouble with this argument is that, as Stephen Walt argues, research on the history of interventions meant to overthrow leaders of weak states shows that the “probability that our intervention will yield a stable democracy is low, and that our decision to intervene has increased the likelihood of civil war.”

6. To convince us that this war is not rash / Bush-like, the President argued that he went to war with the support of the U.N. Security Council, European allies, the Arab League, and the Libyan opposition. Left off the list of consenters are Americans and their congressional representatives. Maybe the President now agrees with Jack Goldsmith that candidate Obama’s 2007 opposition to bombings undertaken without congressional authorization is constitutional formalism rendered moot by decades of congressional supplication before presidents. Maybe he agrees with Hillary Clinton’s contention that the United Nation’s Security Council can legalize what Congress does not or Congressman Jim Moran’s notion that it shouldn’t vote on wars because it is “too easily influenced by public opinion.”

The whole point of separating powers, of course, is to check executive whimsy with congressional power that reflects public opinion. That fact that Congress has authorized plenty of dumb wars shows that the check is insufficient, not that it is useless. It is probably naive to think that Congress would have blocked this war, but by exercising its atrophied war powers Congress at least might have caused the war to be waged with more wisdom and forethought.

Tonight, to sell the illusion of America’s “limited military action” in Libya’s civil war, President Barack Obama insisted that America had a moral imperative to intervene militarily, implying he will do so wherever foreign leaders commit atrocities against their people. This latest mission in the name of “humanitarian imperialism” is extremely dangerous. In fact, if all goes well in Libya, it might be just as bad as if we fail.

Consider, for instance, if I walked through a wall of fire and came out the other side unharmed. Although I came out safe and sound, my decision to walk through the wall of fire was still misinformed. My good outcome was simply one among a host of potentially terrible outcomes. After all, if I were to walk through that wall of fire again and again, given the danger and level of risk, I would end up with many more bad outcomes than good outcomes.

In this respect, and in terms of our external security commitment to Libya, what matters is not necessarily a good outcome, but making a good decision in the face of various options. Thus, even a narrow and limited military engagement does not mean an absence of risk; one need only reference our “narrow and limited” military engagement in Vietnam to understand the danger of foreign gambles. If indeed our military can be ordered by the president to any corner of the globe, for the advance of human rights and in the absence of vital American interests, then the repercussions of our latest intervention could reverberate well beyond Libya.

President Obama’s decision to launch a series of military strikes against Libya raises a host of questions, many more than can be answered in his much-belated address to the American people tonight. At a minimum, the President must clarify the purpose and scope of the mission. He has declared that the sole object is to protect civilians from harm. Others in his administration, however, suggest that military operations will continue until Muammar Qaddafi leaves office.

In fact, the two goals might be contradictory, as the need to protect civilians from violence could well extend long after Qaddafi’s regime is toppled. If the rebels seize power and then turn their guns on former regime supporters, the U.S. military may find itself in the middle of a bloody civil war, as it did in Iraq. President Obama must provide assurances to the American people that he has not committed American blood, treasure, and prestige to a mission that does nothing to preserve U.S. national security, and might ultimately harm it.

Even if the President can clarify the mission, articulate an exit strategy, and give ironclad assurances that the U.S. military is not involved in yet another open-ended nation-building mission, the President’s speech this evening cannot explain away his blatant abuse of executive power. In 2007, Senator Obama declared “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And yet no one has claimed that Qaddafi’s threats against the Libyan rebels posed a threat to the United States. Nor can anyone show that Qaddafi’s ouster would advance U.S. security. If the rebels prove more tolerant of al Qaeda or other violent extremists, the net effect of this intervention might be to increase the threat of attack against the United States.

Obama’s instincts in 2007 were correct. His ascendancy to the presidency appears to have prompted a change of heart, but no one should be encouraged by this Oval Office conversion. That his predecessors have similarly abused their power is no excuse. The United States is governed by laws, not by men. To allow a single person to wage war without the expressed consent of the people, as stipulated by the Constitution, merely compounds the serious harm done to our institutions of government over the past several decades.